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NIT FORUMS: Short-changed
Issue 140 - 18 Oct 2007
Issue 140, October 18, 2007: The more things change, the more they stay the same, writes MEGAN DAVIS*.
It is always entertaining to pick up The Weekend Australian after any major federal government announcement on Indigenous policy.
There is always, without fail, a “behind the scenes” story of the secretive machinations of Howard government policymaking.
It usually involves clandestine meetings with conservative Indigenous figures and seeks to put Indigenous communities in their place by trumpeting the merits of the Coalition's vehement rejection of true consultation.
Now, apparently there has been a tectonic shift in Howard's thinking and those convinced of it insist that his Sydney Institute speech reflects this shift.
Never mind that this Prime Minister has actively undermined reconciliation since his government came to power and never mind that the proposal requires the Australian state to give up absolutely nothing.
The only tectonic shift in Howard's approach to Indigenous affairs has been the opinion polls this year.
Glenn Milne hit the nail on the head when he wrote: “It was like a chapter that he had consciously left out of his biography and suddenly rediscovered. But having discovered it, he just hurriedly pasted it in, out of context, meaningless.” (The Australian, October 15, 2007).
This appears to be the reaction of most Indigenous and non-Indigenous Australians to the Prime Minister's proposal for a referendum to amend the preamble to the Australian Constitution.
So what does the proposal mean? Preambles are generally the introductory statement to statutory instruments preceding the operative text.
Many preambles to Constitutions around the world are inspiring and provide a powerful symbolic gesture about the values of a nation, such as the preambles to the South African and United States Constitutions.
Amending the preamble was one of the measures recommended by the Council for Aboriginal Reconciliation along with a raft of other measures that would address unfinished business between Indigenous peoples and the state. Howard's proposal does not, as erroneously reported, provide for the recognition of Indigenous rights in the Constitution.
The proposal, in effect, involves amending the preamble to the Commonwealth of Australia Constitution Act 1900. This Act was passed by the British Parliament to give legal force to the Australian Constitution.
The rules of statutory interpretation that assist us in understanding how the Constitution works, tells us that it has no real legal effect and will have little, if any, interpretive value.
The requirement for a referendum is because Australia's founding document is a “rigid” Constitution and was written so it would be deliberately difficult to change.
Section 128 provides that any amendment must be passed by a majority of people in a majority of states and also, a national majority.
In summary, the proposal is to amend the preamble to the Act that contains the Australian Constitution.
Curiously overlooked in recent public debate is the fact that such a successful referendum would create a most unusual situation: a beautifully crafted preamble preceding an operative text that empowers a Federal government to pass legislation to the detriment of a group on the basis of race.
If Howard is indeed re-elected it will be interesting whether Australians eventually find it unpalatable that this welcome symbolic gesture in fact showcases a Constitution that permits discriminatory legislation against a race.
Again, the Prime Minister's proposal will not require the Australian state to give anything up.
The Prime Minister is too clever to suggest any actual disruption to Australia's public institutions, because that is not a Howard government value.
Those closest to Howard may see and honestly believe there has been a shift in his thinking because they break bread with him and have a relationship with him. But like most Australians, Indigenous peoples judge our Prime Ministers and our governments by their actions not their private thoughts.
This is why it's called “representative democracy” - we are not, as a matter of course, privy to the intellectual awakenings of those in power.
Anecdotes about tectonic shifts in thinking have less weight for Indigenous peoples than actions.
It may not sit well with the Coalition's rhetoric of Australian values but in practice, race discrimination has been a Howard era value.
Howard's actions include legislatively winding back native title rights, land rights and customary law rights - this list is not exhaustive.
Most incomprehensible and insidious, he has argued before the High Court that it is acceptable for a modern liberal democracy, ostensibly committed to equality and non-discrimination, to pass laws to the detriment of Indigenous peoples.
As Milne rightly observed, “the Prime Minister's Sydney Institute speech wasn't part of any cogent narrative, past or future. Worse, it jarred fundamentally with the story Howard has created about himself for 11 years”.
After all, for over a decade the Coalition's Indigenous policy eschewed 'symbolism' in favour of the practical “hard headed” approach distinguished by emphasising welfare, unemployment, banking and income management as its only priority.
There is irrefutable evidence that the policy of practical reconciliation has unequivocally failed. Now the conservatives are shuffling toward the ground that most Indigenous peoples have inhabited all along.
According to head of the National Indigenous Council, Sue Gordon, “There were the group that want symbols; there are the group that want practical reconciliation. We were trying to find a balance in between that”.
But this is too neat an explanation and is similar to the furphy about the Left's obsession with rights and rejection of responsibilities.
There is no group that only wanted symbols. The problem is that the conservatives don't read.
They didn't read the literature advocating symbolic reconciliation. If they did they would have learned long ago that the symbolic and the practical are two sides of the same coin.
They are conservatives and their rejection of symbolism was about their gut feeling and about protecting their own turf - their Constitution; their white history; their pastoral properties; it wasn't informed by fact.
The scholarship of the Indigenous intelligentsia, Larissa Behrendt, Mick Dodson and Jackie Huggins and many more have always advocated that the symbolic and the practical are two sides of the same coin.
In creating a false dichotomy between the symbolic and the practical approach, the conservatives have always treated Australia's public institutions as concluded, static and not evolving.
The proposal for a preamble doesn't change that. There is no shift in Howard's thinking because it changes nothing. Plus ca change...
*Megan Davis is Director, Indigenous Law Centre and Senior Lecturer, Faculty of Law, University of New South Wales.
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